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SUPREME COURT OF INDIA
A.N. RAY, C.J.I., D.G. PALEKAR, Y.V. CHANDRACHUD, P.N. BHAGWATI AND V.R. KRISHNA IYER, JJ.
Kanu Sanyal, Petitioner
Versus
District Magistrate, Darjeeling and others, Respondents.
Writ Petn. No. 205 of 1973, D/- 11-9-1973.
Held, that the writ of the Habeas Corpus is essentially a procedural writ. It deals with the machinery of justice, not the substantial law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The production of the body of the person alleged to be wrongfully detained is ancillary to the main purpose of the writ. It is merely a means for achieving the end which is to secure the liberty of the subject illegally detained. In the early days of the development of the writ, the production of the person alleged to be wrongfully detained was essential because that was the only way in which the courts of Common Law could assert their jurisdiction by removing parities from the control of the rival courts. But the circumstances have changed long since and it is no longer necessary to have the body of the person wrongfully detained before the court in order to be able to inquire into legality of his detention and set him free, if it is found that he is unlawfully detained. That step was essential to the accomplishment of the purpose of the writ at one time but it is no longer necessary. The inquiry into the legality of the detention can be made and the person illegally detained can be effectively set free without rejuiring to be produced before the court and there is nothing in the Art. 32 which requires that the body of the person must be produced before an application for a writ or Habeas Corpus can be heard and decided by the court. (Paras 4 & 8)
Constitution of India, Art. 32(2)-Right of the detenue to move to the Supreme Court for enforcement of his Fundamental Right-Supreme Court whether bound to give relief in the manner as sought to be.
Held, that though the petitioner has a Fundamental Right to move the Supreme Court by appropriate proceeding for enforcement of any of his Fundamental Rights guaranteed under Part 111 and the Supreme Court is bound under Art. 32(2) to issue appropriate direction, order or writ for enforcement of such Fundamental Right, there is no obligation on the Supreme Court to give any particular kind of remedy to the petitioner. What should be the appropriate remedy to be given to the petitioner for enforcement of Fundamental Right sought to be vindicated by him is a matter for the Supreme Court to decide under Art. 32(2) (Para 7)
Supreme Court Rules, 1966, Or. XXXV, R. 4 & 5 and Or. XLVII, R 1 & 6 - Issuance of rule nisi-Interpretation of-Whether the production in person of the detenue can be dispensed with-whether the writ challenging detention can be decided in absence of the detenue.
Held, that the production of body of the person detained is not essential to the jurisdiction of the Supreme Court to deal with application. The Supreme Court can examine the legality of the detention on hearing of the rule nisi without requiring the person detained before the Court, and if the detention is found unlawful, order him to be released forth with. This, in fad, is the procedure set out in or. XXXV, R. 4 & 5 read with Or. XLVII, R. 1 & 6 of the Supreme Court Rules.
Held, further that it is competent to the Court to dispense with the production of the body of the person detained while issuing rule nisi under order XXXV, R. 4 and rule nisi can be heard and an appropriate order passed in terms of order XXXV, R. 5 without requiring the body of the person detained to be brought before the court. (Para 8)
Judgment
BHAGWATI, J:- The short question that arises for determination in this petition under Art.. 32 of the Constitution is whether the production of the body of the person alleged to be unlawfully detained is essential before an application for a writ of habeas corpus can be finally heard and disposed of by the Court. The question is of some importance, affecting as it does the practice and procedure to be followed in an application for a writ which has come to be universally recognised as the most effective protection invented by Anglo Saxon jurisprudence against wrongful deprivation of personal liberty. It is not necessary for a proper determination of the question to recount the facts giving rise to the petition. Nor is it necessary to set the grounds on which the petitioner contends that he has been illegally restrained of liberty. It would be sufficient to state that the petitioner filed the petition for a writ of habeas corpus contending that he has been wrongfully deprived of liberty and that he should be released forthwith from his confinement. The petition was forwarded to this Court by the petitioner from the Central Jail. Visakhapatnam where he is detained as an under trial prisoner pursuant to the remand granted form time to time by the special Magistrate, Visakhapatnam before whom committal proceedings are pending against him in PRC Nos. 1 and 2 of 1971. When the petition came up for preliminary hearing on 2nd April, 1973, Mr. Garg appeared on behalf of the petitioner with the permission of the Court, and after hearing him the Court made an order for the issue of rule nisi, but directed that there should be no personal production for the present. Three affidavits in reply were filed in answer to the rule nisi, one by respondents Nos. 1 and 5, the othere by respondent No. 6 and the third by respondent No. 7. When the peition reached hearing before the learned Vacation Judge, Mr. Garg. Appearing on behalf of the petitioner, raised a contention that the petition could not be heard by the Court unless the petitioner was produced in person and in support of this contention he relied on Order XXXV, rule 4 of the SC Rules, 1966. The learned Vacation Jude felt that the question raised by MR. Garg was an important one and it should be decided after hearing the State of Andhra Pradesh since it was that state which was holding the petitioner in custody in the Central Jail, Visakhapatnam, and he accordingly directed notice to be given to the State of Andhra Pradesh. The State of Andhra Pradesh filed an afidavit in reply and appeared at the hearing of the petition before a Division Bench of this Court on 25th July, 1973. The Division Bench took the view that the non-production of the petitioner in an aplication for a writ of habeas corpus is violative of his rights under Article 32 of the Constitution was one required to be decided by the Constitution Bench and that is how the matter is now before us for determination of this contention.
2. The argument urged by Mr. Garg on behalf of the petitioner in support of his contention proceeded on the following lines. Mr. Garg contended that the case of the petitioner was that he was unlawfully confined in jail in contravention of Article 21 and he was, therefore, entitled under Article 32 to move the Suprmemt Court for a writ of habeas corpus to enforce the fundamental right of personal freedom guaranteed to him under Art. 21. The right to obtain relief by way of a writ of habeas corpus was according to Mr. Garg. A fundamental right of the petitioner and since the production of the body of the person alleged to be illegally detained is an essential feature of a writ of habeas corpus, the petitioner was entitled to claim that he should be produced before the Court before his petion for a writ of habeas corpus could be disposed of by the Court It was conceded by Mr. Garg that if no prima facie case is shown by the petitioner that he is unlawfully detained, the petition may be dismiss
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